IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANK
SC (FR) Application No. 258/2007
Petitioner:-
Uduwa Athukoralage Chandrasena, Kelinkanda Janapadaya,
Nilukitiya, Kelinkanda, Agalawatte.
Vs.
Respondent
Sub-Inspector Buddhika, Officer in Charge – Crimes, Police
Station, Badureliya
2. Officer –in –Charge; Police Station, Badureliya,
3. The Inspector General of Police;
4. Hon. Attorney General
BEFORE:
Shirani A. Bandaranayake, J; Jagath Balapatabendi, J.
& K.Sripavan,J
COUNSEL:
Sharmaine Gunaratne for the Petitioner.
P.Munasinghe, SC, for Respondents
ARGUED ON: 23.10.2008
WRITTEN SUBMISSIONS TENDERED ON
Petitioner 16.12.2008
1
st
& 2
nd
Respondents : 19.01.2009DECIDED ON: 13.05.2009
Shiranee A.Bandaranayake, J.
The petitioner complained that he was arrested on 27.06.2007
around 11.30am.while he was on his way to attend a funeral in the
Neluketiya area and that at that at the time he was arrested the 1
st
Respondent had assaulted him. The Petitioner accordingly alleged
that due to the aforementioned action his fundamental rights
guaranteed in terms of Article 11, 13 (1) and 13 (2) of the
Constitution had been infringed for which this Court granted leave
to proceed.
Although leave to proceed was granted on Article 11, 13 (1) and
13(2) of the Constitution learned Counsel for the petitioner
confined her submissions to the infringement of petitioner's
fundamental rights guaranteed in terms of Article 11 of the
Constitution. Accordingly both parties were heard only on the
alleged infringement of Article 11 of the Constitution.
The petitioner's case, as submitted by him, albeit brief, is as
follows:
The petitioner, a laborer by profession, had no family and was
staying at a relative's house. On 27.06.2007, while he approached
the volleyball court of the village on his way to Neluketiya, he had
seen two villagers, namely Martin and Sarath, being accompanied
by four (4) unknown persons. Later the petitioner had become
aware that the 1
st
respondent had led the said team.
The said persons had inquired from the petitioner for Kasippu (illicit
liquor) to which the petitioner had replied that he has no
involvement in any such brewery. However the 1
st
respondent and
others, who had claimed to be from the "police", took the petitioner
near the volleyball court and made him to hold a post therein and
the 1
st
respondent had assaulted the petitioner with a club. When
the petitioner inquired as to what offence he had committed, the 1
st
respondent had started that they were from Police and asked for
Kasippu once again, while the 1
st
respondent and other, whose name is not known to the petitioner, assaulted him continuously.
The said police officers had assaulted the petitioner on his arms,
particularly the right arm, shoulders, legs, thighs and head. The
petitioner felt dizzy, faintish and developed a headache.
The petitioner had requested the 1
st
respondent and the others to
take him to a hospital, where the said officers had told him to go to
a hospital on his own, but not to mention that he was assaulted by
Police and the event they become aware that he had mentioned
about the said assault, that he would be sent to jail by introducing
ganja and heroin.
Later the petitioner was brought to the main road along with Martin
and Sarath. There was a three wheeler parked at the side of the
road. Two officers of the group, set off stating that they were going
to Premadasa's house. At that moment a bus arrived and
Premadasa was among the people, who alighted from the bus.
The police officers stopped Premadasa and one officer stepped
into the bus along with the petitioner, Martin and Sarath and
brought them to Baduraliya Police Station around 1.30pm., and
were immediately put into the cell. Later they had brought
Premadasa, who was also put in to the cell. The petitioner was in
pain and he had seen that Sarath, who was also assaulted by the
said Police Officer, had injuries on his buttocks, but the Police did
not offer any food, water or medicine to them.
The petitioner and the others were released on police bail around
9pm. Although the petitioner was feeling sick he was in fear to get
him self admitted to a hospital due to the threats of the police.
On 29.06.2007, the petitioner appeared before the Magistrate's
Court, Matugama. His Attorney had informed him that he had been
charged with possession of' goda and since he had not committed
any offence he had pleaded not guilty. He had informed the
learned Magistrate that he had been arrested on false ground and
was assaulted by police. Learned Magistrate had inquired from
him whether he had any injuries and he had shown his right upper
arm. The petitioner was released on a Rs. 20,000/- personal bond.
Along with the petitioner, Premadasa also had pleaded not guilty, but Sarath and Martine had pleaded guilty and paid the fine.
Since the petitioner was in severe pain as there was no
improvement in his condition he went to a private medical
practitioner and later due to the continuous body pain and nausea
he was admitted to the Kalutara - North hospital on 04.07.2007,
where he was warded until 07.07.2007. During that period, the
petitioner was examined by the Consultant Judicial Medical Officer
of the Karapitiya Teaching Hospital. Having stated the facts of this
application let me now turn to consider the submission made on
behalf of the petitioner and the respondents.
The 2
nd
respondent being the Officer-in-Charge of the Baduraliya
Police Station, in his affidavit dated 16.08.2008 had averred that
on the day the petitioner was arrested, viz. 27.06.2007, he was on
leave and therefore he was not present at the Police Station. He
had tendered the out entry and in entry as an annexure to his
affidavit in support of his contention.
The said out entry (2R3) dated 24.06.2007 stated that he had
obtained leave for three (3) days with effect from 25.06.2007 and
during his absence the 1
st
respondent would be functioning as the
acting Officer-in-Charge of the station. The entry (2R4) stated that
the 2
nd
respondent had reported for duty at 7.05a.m on
28.06.2007.
It is common ground that the petitioner was taken into custody on
27.06.2007 around 11.30a.m. On a consideration of the affidavit
and the supporting documents tendered by the 2
nd
respondent, it is
evident that the 2
nd
respondent had not been in the Police Station
during the said period and that there was no involvement on his
part with regard to the arrest of the petitioner. Furthermore, it is to
be noted that, the petitioner's allegation is that, he was assaulted
at the time he was arrested on 27.06.2007. Based on the
submission on behalf of the 2
nd
respondent and the supporting
documents he had tendered to this court, it is apparent that the 2
nd
responded was not involved either in the arrest or the alleged
assault on the petitioner and therefore I hold that the 2
nd
respondent cannot be held responsible for the violation of the
petitioner's fundamental rights guaranteed in terms of Article 11 of the Constitution.
The 1
st
respondent had taken up the position that he had not
accompanied the team of Police officers, who had participated in
the aforementioned raid for illicit liquor and had arrested the
petitioner and three others on 27.06.2007, as he was engaged in
duties at the Police Station on that day. In support of his
contention, the 1
st
respondent had tendered extracts from daily
reports of the Baduraliya Police Station (1R2), MOIB information
book (1R3) and an affidavit given by one Kodippili Arachchige Ajith
Prasanna (1R4).The extracts of the MOIB information book of the
Baduraliya Police Station indicates that around 10.00a.m, the 1
st
respondent had been investigating into a road dispute between
two parties.
The MOIB information book indicates that on 27.06.2007 around
9.45a.m, five officers had left the Police Station in a three wheeler
to investigate in to the information received on the sale of illicit
liquor within the area. The officers had returned later with Sarath,
Martin, Chandrasena and Premadasa as they were in possession
of illicit liquor.
On a consideration of the submissions made on behalf of the 1
st
respondent and an examination of the aforementioned documents,
it is apparent that the 1
st
respondent had been involved in other
duties at the Police Station by 10.00 a.m, on 27.06.2007. The 1
st
respondent had not denied the fact that there had been a raid on
the brewing of illicit liquor. His position was that on 27.06.2007, on
information received, a team of Police Officers attached to the
Baduraliya Police Station headed by Sergeant Gunaratne had
conducted a raid on the brewing of illicit liquor. The petitioner's
allegation was that he was assaulted by the Police officers at
11.30am, near the volleyball court of the village.
It is also to be noticed that in all the relevant extracts of the MOIB
Information book, there is no reference to the participation of the
1
st
respondent in the raid on 27.06.2007.
Expect for the version given by the petitioner, there is no material
to substantiate his position that the 1
st
respondent was among the group of Police officers, who had arrested the petitioner and the
others at 11.30am on 27.06.2007. Learned State Counsel for the
1
st
respondent strenuously contended the 1
st
respondent had been
at the station at 10.00am on the day in question. The petitioner's
position was that he was arrested at 11.30am on 27.06.2007.
Considering the position as to whether the 1
st
respondent could
have been at the place in question by 11.30am on 27.06.2007, it
was not disputed by the learned Counsel for the petitioner at the
hearing, that the road leading to the volleyball court and the
surrounding area are in a dilapidated condition, which would take a
considerable amount of time to arrive at the said volley ball court
from the police station.
The question of proof in fundamental rights applications was
considered by this Court in Kapugeekiyana v Hettiarachchi
([1984] 2 Sri L.R. 153), where Wimalaratne, J. had stated that,
"In deciding whether any particular fundamental right has been
infringed I would apply the test laid down in Velmurugu that the
civil, and not the criminal standard of persuasion applies, with this
observation; that the nature and gravity of an issue must
necessarily determine the manner of attaining reasonable
satisfaction of the truth of that issue"
This question was considered in depth by Wanasundara, J. in
Velmurugu v A.G. and others (Fundamental Rights – Vol. I 196)
and referred to Lord Stowell's Judgment, in Loveden v Loveden
((1810) 2 Hagg. Con. 1.3) , where Lord Stowell had started that,
"The only general rule that can be laid down upon the subject is
that the circumstances must be such as would lead the guarded
discretion of a reasonable and just man to the conclusion."
It is to be noted that in his petition, the petitioner had stated that
Martine and Sarath were accompanied by four (4) unknown
persons. Having stated that the four (4) officers to be unknown, he
had continued to state that later he had become aware of the
name and designation of the 1st respondent. It appears that the
petitioner had attempted to identify the officers, who had arrested
him on 27.06.2007 subsequently, by making inquiries. However, it is apparent that the petitioner had not been able to substantiate his
position by independent evidence that the 1st respondent had led
the team of police officers, who had arrested him.
On a consideration of the submissions made by the learned
Counsel for the petitioner and the learned State Counsel for the
respondents and on the basis of the aforementioned general tests,
I am of the view that the petitioner had not satisfied this Court that
the 1st respondent had been present at the time the petitioner was
arrested by the Police Officers near the volleyball court on
27.06.2007. I accordingly hold that the 1st respondent had
participated in the arrest of the petitioner on 27.06.2007.
Having decided on the participation of the 1st respondent, let me
now turn to examine whether there had been a violation of
petitioner's fundamental rights guaranteed in terms of Article 11 of
the Constitution.
Article 11 of the Constitution deals with freedom from torture and
reads as follows:
"No person shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment."
The petitioner complained that he was assaulted by the Police
Officers at the time of his arrest. His complaint was that he was
assaulted on his right arm, shoulder, legs, thighs and the head and
that the said assaulted had been with the aid of a club. Expect for
the affidavit given Premadasa (P1), who was also taken into
custody along with the petitioner, there is no other affidavit to
substantiate the petitioner's version that he was assaulted by the
Police officers at the time of his arrest.
The respondent were of the view that the petitioner was never
assaulted, and had recorded that at the time of arrest that there
were no visible injuries (aau;=msgska fmkSug lsisoq ;=jd, ke; -
1R3).
Notwithstanding the position taken by the respondents, learned
Counsel for the petitioner strenuously contended that, the petitioner was assaulted by the police officers and that he had
taken treatment from the General Hospital, Kalutara. This Court
had in fact called for the said Medical Report from the Government
Hospital, Kalutara.
When considering allegations based on torture, in terms of Article
11 of the Constitution, this Court had considered medical evidence
as sufficient to prove that the acts complained of in fact had taken
place. Referring to this position Dr. A.R.B. Amerasinghe (Our
Fundamental Rights of Personal Security and Physical Liberty,
1995, pg. 47) , had stated that,
"As will be seen from the Sri Lankan cases, ...a total denial
supported by a conspiracy of silence, the medical evidence is very
often sufficient to prove that the acts complained of did take place".
As stated earlier, it is to be noted that at the time of the arrest, the
petitioner did not have any injuries and this had been recorded by
the police officers at the Police Station (1R3). In such
circumstances, when a person alleges that he had been assaulted,
the inference is that the injuries were caused while he was in
custody. In such an instance, the burden of adducing evidence, to
show that the person having custody of the complainant was not
responsible for such injuries shifts to him. This position was clearly
stated by Kulatunga, J. in Pita Kandalage Gamini Jayasinghe v
P.C.Samarwickrama and others (S.C. (FR) No. 157/91 – S.C.
Minutes of 12.01.1994), where it was stated that,
"It is to be noted that at the time the petitioner was handed over to
that Police, he had no injuries and was in perfect health. But when
he was admitted to the hospital...he was a physical wreck and
almost comatose. I therefore hold that the allegation of torture has
been established"
A similar view had been taken earlier by Atukorale, J. in Amal
Sudath Silva v Kodituwakku ([1987] 2 Sri L.R. 119) and it was
held that where the injuries were caused while the petitioner was in
the custody of state officers, that the only reasonable inference'
was that they were caused by such officers.In the above backdrop, let me now turn to refer to the MedicoLegal Report submitted by the Medico-Legal Specialist of the
Teaching Hospital Karapitiya, who had examined the petitioner on
11.07.2007 at 10.00 a.m. I accordingly reproduce below the
relevant parts of the said Medico- Legal Report.
Short history given by the patient
The victim was confronted by four police officers attached to the
Baduraliya Police Station on 27th June 2007 on his way to a
funeral. Two of them assaulted him with elongated wooden sticks.
He was threatened by the same policemen not to seek medical
treatment after the incident. later he had taken treatment from a
general practitioner due to severe pain felt in limbs and the chest
region.
Injuries
1. A scalp haematoma measuring 2cm x 3 cm place on the vertex
of the head just right to the midline.
2. A broad elongated contusion was placed obliquely over the full
length of the inner aspect of the right upper arm. The maximum
breadth of the contusion was 10cm observed towards proximal
end of the upper arm.
3. A diffuse contused area measuring 8 cm x 10cm located on the
lateral aspect of the middle third of the right thigh.
4. The victim felt pain on examination over a diffuse area of the
anterior chest more towards right side measuring 15cm x 10cm.
Timing of Injuries
The contused areas of the body appear macroscopically in a
spectrum of purple to green colours. Two patchy areas of greenish
yellow discoloration were seen in the diffuse contusion over the
right thigh.
Conclusion- The features of injuries observed on the scalp, right upper arm
and the right tight are consistent with contusions.
· The injury pattern is consistent with repeated assault by an
elongated blunt weapon/s.
· The history given by the victim is in keeping with the examination
findings".
In the short history given by the petitioner to the Medico-Legal
Specialist at the time of examination, he had clearly referred to the
incident that took place at the time of his arrest. The petitioner
therefore had been consistent of how he had sustained his injuries.
The Medico-Legal report clearly stated that history given by the
petitioner is in keeping with the examination findings.
Considering all the circumstances of this matter, I find that the
medical evidence substantiates the petitioner's allegation and
therefore I declare that the petitioner's fundamental right
guaranteed by Article 11 of the Constitution had been violated.
As stated earlier it is apparent that the 1st and 2nd respondents
had not been involved in the arrest of the petitioner and therefore
cannot be held responsible for the alleged assault. On the other
hand, the Medico- Legal Report supports the version given by the
petitioner that he had been assaulted at the time of his arrest. It is
to be noted that although the 1st respondent had been in charge of
the Baduraliya Police Station, in the absence of the 2nd
respondent, who was the Officer-in-Charge, he had not indicated
to the Court as to the officers, who were involved in the act.
Accordingly the petitioner had not amended the caption to add any
officer as a respondent. Learned Counsel for the petitioner
contented that the 1st and 2nd respondents had taken up the
position to exclude themselves from liability, but had failed to look
into the complaint made by the petitioner.
As stated earlier, at the time the petitioner was taken into custody it
had been recorded that there were no injuries. Later however, the
petitioner had been complaining that the Police officers had assaulted him at the time of his arrest. In such circumstances, it
would be the duty of the Police Officers, who are in charge of
Police Stations, either to indicate as to what had caused the
injuries complained of by the petitioner or in the event that there is
a difficulty in identifying the officers, who had been involved in
such a situation, to take steps to hold a proper inquiry into the
complaint. Such an inquiry, probably with an identification parade
in term of the provisions of the Code of Criminal Procedure Act,
No. 15 of 1979 would assist Court to obtain reliable identification of
the persons, who would have been involved in alleged assaults.
However, even if the identity of the Police Officers have not been
sufficiently proved , the liability of the State cannot be ignored or
treated lightly as such a violation of the petitioner's fundamental
rights would be by executive and / or administrative action of State
officers acting under the colour of their office. This position was
considered in Ratnasiri and another v Devasurendran,
Inspector of Police, Slave Island and others ([1994] 3
Sri.L.R.127), where reference was made by Kulatunga, J., to the
identity of officers and it was stated that,
"The weakness of their case against individual officers is probably
due to the fact that they have attempted to identify these officers
subsequently by making inquiries from others and that in the
process they based their case on hearsay evidence. In these
circumstances, the rejection of their testimony against individual
respondents would not necessarily render their testimony as
regard the assault on them incredible especially because the
allegation of assault in corroborated by independent evidence
including the medical evidence"
Considering all the aforementioned circumstances, for the
infringement of the petitioner's fundamental rights guaranteed in
terms of Article 11 of the Constitution the liability would lie with the
State.
I accordingly hold that the petitioner's fundamental right
guaranteed in terms of Article 11 of the Constitution had been
infringed by executive and / or administrative action and I
direct the State to pay a sum of Rs. 75,000/- as compensation and costs. This amount to be paid within three (3) months
from today.
The Registrar of the Supreme Court is directed to send a copy of
this judgment to the Inspector-General of Police
Shirani A.Bandaranayake, J Judge of the Supreme Court
Jagath Balapatabendi, J.I agree Judge of the Supreme Court
K.Sripavan, J I agree. Judge of the Supreme Court
04:03 AM
Wednesday
April 21st,
2010
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